United States District Court, Western District of Pennsylvania
MEMORANDUM OPINION AND ORDER
MAURICE B. COHILL, JR. SENIOR UNITED STATES DISTRICT JUDGE
Pending before this Court is Jason Sheppard's "Petitioner's Motion to Vacate, Set Aside or Correct a Sentence Pursuant to 28 U.S. C, §2255" ("Petitioner's §2255 Petition") [ECF #75]. The United States has filed a Motion to Dismiss Defendant's Motion to Vacate" [ECF #76]. For the reasons set forth below, the Government's Motion to Dismiss is granted and Petitioner's §2255 Petition is denied.
Petitioner was charged by Indictment at Crim. No. 10-119 in this district with five (5) counts of wire fraud in violation of 18 U.S.C. § 1343. On August 11, 2011, he pleaded guilty to Count One (1) of the Indictment pursuant to a written plea agreement with the Government.
On June 12, 2012, after finding the relevant offense level to be a 22 and that Petitioner's criminal history category was a II, Petitioner was sentenced to fifty-five (55) months in prison; the applicable United States Sentencing Guidelines range for an offense level of 22 and a criminal history category of I was 46 to 57 months' imprisonment. This sentence was consistent with that contemplated by the plea agreement. The parties had agreed that the applicable base offense level was a 7, that the offense level was to be increased by 16 levels due to the amount of loss involved, that the amount of said loss associated with Petitioner's conduct was between $1 million and $2.5 million, based on the parties' best understanding of the information available as of the date of the agreement, that the offense level was to be increased another 2 levels to account for his role in the offense, and that Petitioner should receive a three offense level reduction for acceptance of responsibility, for a total offense level of 22.
II. Standard of Review under 28 U.S.C. § 2255.
Section 2255 of Title 28 of the United States Code provides a means of collaterally attacking a sentence imposed after a conviction. U.S. v. Cannistraro, 734 F.Supp. 1110, 1119 (D. N.J. 1989). Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a sentence only "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Relief under this provision is "generally available only in 'exceptional circumstances' to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." U.S. v. Gordon. 979 F, Supp. 337, 339 (E.D. Pa. 1997) (citing Hill v. U.S.. 368 U.S. 424, 428 (1962)).
The Court must consider the motion together with all the files, records, transcripts and correspondence relating to the judgment under attack. See 28 U.S.C. § 2255, Rule 4(b) of the Rules Governing Section 2255 Proceedings. A district court considering a § 2255 motion '"must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record, '" U.S. v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Virgin Islands v. Forte. 865 F.2d 59, 62 (3d Cir. 1989)), and a court "abuses its discretion if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief." Booth, 432 F.3d at 546 (citing U.S. v. McCoy. 410 F.3d 124, 134 (3d Cir. 2005). However, the final disposition of a § 2255 motion lies with the discretion of the trial judge, see Virgin Islands v. Nicholas. 759F.2d 1073, 1075 (3d Cir. 1985), and a district court may summarily dismiss a §2255 motion where the motion, files, and records "show conclusively that the movant is not entitled to relief." U.S. v. Mason. 2008 WL 938784, 1 (E.D. Pa. 2008) (citing Forte, 865 F.2d at 62).
A defendant can, however, waive his right to collaterally attack his sentence pursuant section 2255 pursuant to a plea agreement, and said waiver will be upheld as long as the Court determines that the waiver was knowing and voluntary and does not result in a miscarriage of justice. See United States v. Khattak. 273 F.3d 557, 558, 563 (3d Cir.2001) (holding that, as a matter of first impression, waivers of right to appeal are permissible if entered into knowingly and voluntarily, unless they work a miscarriage of justice, and that defendant's waiver of his appeal rights contained in a plea agreement was knowingly and voluntarily made); United States v. Gwinnett, 483 F.3d 200, 205 (3d Cir, 2007) (holding that appellate court would not review the merits of sentencing appeal because defendant knowingly and voluntarily waived her right to appeal); United States v. Mabrv, 536 F.3d 231 (3d Cir.2008) (appellate court extended Khattak' s reasoning and holding to uphold a waiver of the right to file a section 2255 or other petition seeking collateral relief from a sentence).
III. No Need for an Evidentiary Hearing.
When a motion is made pursuant to 28 U.S.C. § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion, the court must accept the truth of the Petitioner's factual allegations unless they are clearly frivolous on the basis of the existing record, Booth, 432 F.3d at 545, and the court must order an evidentiary hearing to determine the facts unless the motion, files and records of the case show conclusively that the petitioner is not entitled to relief. U.S. v. Day. 969 F.2d 39, 41-42 (3d Cir. 1992); United States v. Gordon. 979 F.Supp. 337, 339 (E.D. Pa. 1997). Here, we find no need for an evidentiary hearing, since the record conclusively establishes that Petitioner is not entitled to the relief sought in his § 2255 Petition.
IV. Summary of Arguments.
It is Petitioner's contention that his §2255 Petition should be granted because his defense counsel rendered ineffective assistance of counsel by failing to explain the terms of the plea agreement to Petitioner such that Petitioner did not understand the terms pursuant to which he was pleading guilty and the ramifications of his pleading guilty. See Petitioner's §2255 Petition, p. 3 ("[t]he basis of Sheppard's motion deals with his attorney's actions related to Sheppard reviewing his plea agreement and coming to understand is ramification including, but not limited to, the relevant conduct portion as it relates to restitution. Sheppard, in pleading guilty to one count, assumed that his restitution exposure was $107, 000.00. Later, and after the plea was accepted, by the Court, he discovered that his exposure was closer to 1.5 million dollars."). Petitioner also argues that any waiver of his right to file a §2255 Petition was neither knowing nor voluntary because defense counsel did not talk to him about the contents of the plea agreement until fifteen (15) minutes prior to the change of plea hearing, as they walked to the courthouse, and he did not read the plea agreement until they got to the courtroom, five minutes before the hearing began, so that when this Court asked Petitioner questions about the plea agreement and his pleading guilty in general, he did not understand enough to ask questions and did not understand that he was being held responsible for $1.5 million in losses as opposed to $107, 000.
In response to the §2255 Petition, the Government filed a Motion to Dismiss. The basis for the Motion to Dismiss is that Petitioner knowingly and voluntarily entered in a plea agreement with the Government pursuant to which he agreed to waive his right to file any collateral appeals of his sentence and that enforcement of the waiver will not result in a manifest injustice, such that the waiver should be enforced and the §2255 Petition dismissed.
Petitioner then filed a Response to the Government's Motion to Dismiss in which he reiterated his contention that his waiver was neither knowing nor voluntary and that defense counsel's actions constituted ineffective assistance of counsel such that it would be a "miscarriage of justice" to enforce such a waiver.
The Government then filed a Reply to Petitioner's Response to its Motion to Dismiss. In its Reply, the Government argued in greater detail its contention that "the defendant knowingly and intelligently gave up his right to collaterally attack his conviction or sentence, " attaching to the Reply a copy of the transcript of the plea hearing. Reply, p. 2 and exhibit. The Government also argued that "[i]n his reply, the defendant did not claim some sort of manifest injustice. In fact, he did not even assert his innocence and conceded that even if he had a more thorough understanding of the plea agreement than he is now prepared to admit, he still would have entered into the plea agreement. Thus, this case presents a particularly strong one for enforcement of the plain and unambiguous terms of the plea agreement." Id.
V. Legal Analysis.
We first address the issue of whether or not Petitioner knowingly and voluntarily entered in a plea agreement with the Government pursuant to which he agreed to waive his right to file any collateral appeals of his sentence and whether enforcement of the waiver will result in a manifest injustice. In U.S. v. Mabrv. the appellate court provided instruction for our review of the validity of a collateral waiver. A court has "an independent obligation to conduct an evaluation of the validity of a collateral waiver." Mabrv. 536 F.3d at 238. Specifically, we must examine (1) the "knowing and voluntary nature" of the waiver, based on what occurred and what the defendant contends, and (2) whether the enforcement of the waiver would work a "miscarriage of justice." Id. at 237. "Whereas a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary, a court has an affirmative duty both to examine the knowing and voluntary nature of the waiver and to assure itself that its enforcement works no miscarriage of justice, based on the record evidence before it." Id. at 237-238 (citing Khattak. 273 F.3d at 563).
A. Whether Petitioner's waiver of his right to file a §2255 Petition was knowing and voluntary.
With regard to whether the Petitioner's waiver in this case was knowing and voluntary, we must, at a minimum, "review the terms of the plea agreement and change-of-plea colloquy and address their sufficiency." Id. at 239. Here, in the written plea agreement, Petitioner agreed that, with very limited exceptions, he would neither appeal nor present any collateral challenge to his conviction or sentence. Specifically, the ...